Nat'l Org. For Marriage v. Mckee

• Decision Date: 18 February 2011
• Docket Number: Civil No. 09–538–B–H.
• Citation: 765 F.Supp.2d 38
• Parties: NATIONAL ORGANIZATION FOR MARRIAGE and American Principles in Action, Plaintiffsv.Walter F. McKEE, in his official capacity as member of the Commission on Governmental Ethics and Election Practices, et al., Defendants.
• Court: U.S. District Court — District of Maine

765 F.Supp.2d 38

NATIONAL ORGANIZATION FOR MARRIAGE and American Principles in Action, Plaintiffs

v.Walter F. McKEE, in his official capacity as member of the Commission on Governmental Ethics and Election Practices, et al., Defendants.

Civil No. 09–538–B–H.

United States District Court, D. Maine.

Feb. 18, 2011.

James Bopp, Jr., Randy Elf, Jeffrey Gallant, Josiah Neeley, Joseph Vanderhulst, James Madison Center for Free Speech, Terre Haute, IN, Stephen C. Whiting, The Whiting Law Firm, Portland, ME, for Plaintiffs.Phyllis Gardiner, Thomas A. Knowlton, Assistant Attorney Generals, Office of the Maine Attorney General, Augusta, ME, for Defendants.

DECISION AND ORDER ON CROSS–MOTIONS FOR SUMMARY JUDGMENT

D. BROCK HORNBY, District Judge.

Introduction

This portion of a two-pronged lawsuit challenges the constitutionality of Maine's election law as it applies to registration and disclosure requirements for ballot question committees.¹ On October 28, 2009, I denied the plaintiffs' motion for a temporary restraining order.² That ruling required me to assess the likelihood of the plaintiffs succeeding on the merits of their First Amendment constitutional claims. As a result, I analyzed the relevant legal issues in some detail. I do not repeat that analysis. Instead, I incorporate that earlier analysis into this opinion, but modify it as appropriate in light of new cases or re-thinking provoked by the parties' new briefing and their oral argument on January 24, 2011. Now I conclude finally that this Maine law is constitutional, and I award summary judgment to the defendants.

Background

A. Maine's Ballot Question Committee Law ³

Maine law defines a “ballot question committee” as “[a] person not defined as a political action committee who receives contributions or makes expenditures, other than by contribution to a political action committee, aggregating in excess of $5,000 for the purpose of initiating, promoting, defeating or influencing in any way a campaign....” ⁴ For these purposes, the term “ ‘campaign’ does not include activities to promote or defeat or in any way influence the nomination or election of a candidate,” ⁵ but it does encompass a ballot “question,” including the people's veto referendum process provided for in the Constitution of Maine.⁶

The statute defines “contribution” as including, but not limited to:

A. Funds that the contributor specified were given in connection with a campaign;

B. Funds provided in response to a solicitation that would lead the contributor to believe that the funds would be used specifically for the purpose of initiating, promoting, defeating or influencing in any way a campaign;

C. Funds that can reasonably be determined to have been provided by the contributor for the purpose of initiating, promoting, defeating or influencing in any way a campaign when viewed in the context of the contribution and the recipient's activities regarding a campaign; and

D. Funds or transfers from the general treasury of an organization filing a ballot question report.⁷

A group's designation as a “ballot question committee” triggers various reporting requirements. It must name a treasurer ⁸ and register with the Maine Commission on Governmental Ethics and Election Practices (“Commission”) by filing a two-page registration form.⁹ The registration form requires the committee's name and address; the name and address of the treasurer of the committee, any principal officers, and any primary fundraisers and decision makers for the committee; the legal structure of the committee ( e.g., cooperative, corporation, voluntary association, partnership); and a statement “indicat[ing] whether the committee supports or opposes a candidate, political committee, referendum, initiated petition or campaign.” ¹⁰ The registration form also instructs committees to file an initial campaign finance report at the time of the registration.¹¹

Thereafter, ballot question committees must submit to the Commission quarterly reports according to the statute's regular schedule for reporting (January 15th, April 10th, July 15th, and October 10th), and election reports on certain dates relative to the election at issue (the eleventh day before an election and the forty-second day after the election).¹² Each report must include an itemized account of “each expenditure made to and contribution received from a single source aggregating in excess of $100 in any election;” the date of each contribution and expenditure; the name and address of each contributor, payee or creditor; the occupation and principal place of business of any contributor donating more than $100; and the purpose of each expenditure.¹³ Ballot question committees need report only those contributions and expenditures made to promote, defeat, or influence the ballot question.¹⁴ In the two weeks before the election, ballot question committees must report all expenditures of $500 or more within 24 hours of that expenditure.¹⁵ In addition, they must “keep a detailed account of all contributions made to the filer for the purpose of initiating, promoting, defeating or influencing in any way a campaign and all expenditures made for those purposes” and “retain a vendor invoice or receipt stating the particular goods or services purchased for every expenditure in excess of $50.” ¹⁶ These records must be kept for four years.¹⁷ Finally, ballot question committees must file termination reports when they cease financial activity.¹⁸

The Commission is charged with administering Maine's campaign finance laws, including those governing ballot question committees.¹⁹ The Commission provides a written explanation of the filing requirements on its website, and its staff is available to provide advice to ballot question committees. ²⁰ Voters and the press can view the information contained in ballot question committees' registration and campaign finance reports on the Commission's website by clicking on the name of a ballot question committee. ²¹

The Commission also has an enforcement role.²² Failure to register as a ballot question committee is punishable by a $250 fine.²³ The Commission may also assess a civil penalty for failure to file a required report.²⁴ The maximum penalty for failure to file a report required under section 1056–B or section 1059 is $10,000.²⁵ A person who fails to file a report as required within 30 days of the filing deadline is guilty of a Class E Crime.²⁶ The State may not, however, prosecute a violation of the filing requirements if the Commission has assessed and collected a civil penalty.²⁷

B. NOM, APIA, and Ballot Question 1

In November 2009, Maine voters were asked to vote on a ballot question, Question 1, to overturn recent legislation authorizing same-sex marriage in Maine.²⁸ The plaintiffs National Organization for Marriage (“NOM”) and American Principles in Action (“APIA”) supported the ballot question. The defendants are the Maine officials who implement and enforce Maine's election laws. The case is presented on cross-motions for summary judgment. For the most part, there are no material factual disputes. In any situation where there appears to be a dispute, I have credited the plaintiffs' version of the facts.

NOM is a non-profit corporation organized under Virginia law.²⁹ Its corporate purpose as stated in its articles of incorporation is “to promote the importance of preserving marriage as the union of one husband and one wife” and “to advocate for policies that will preserve the historic definition of marriage and the natural family that springs therefrom.” ³⁰ Consistent with its purpose, NOM raises funds to fight gay marriage throughout the country.³¹

In 2009, NOM contributed approximately $1.9 million (out of total 2009 expenditures of roughly $8 million), to Stand for Marriage Maine (“SMM”), a registered Political Action Committee promoting a “Yes” answer on Question 1. ³² According to a newsletter that NOM sent its members, NOM was “the largest contributor to the Yes on 1 effort in Maine.” ³³ NOM's Executive Director, Brian S. Brown, also served on the Executive Committee of SMM and helped raise funds for both NOM and SMM.³⁴

Between May 6, 2009 and November 3, 2009, NOM distributed e-mails to its subscribers providing news updates regarding same-sex marriage in Maine and other states.³⁵ These e-mails included solicitations for funds “to start the referendum process immediately when the law [authorizing same sex marriage] is signed, ensuring that the measure does not take effect before the people of Maine have had their say,” to “defend marriage in Maine and across the country,” to “fight to protect marriage in Iowa, Maine, and everywhere across this great land,” and to “recover the true meaning [of] marriage” in “Maine and our country.” ³⁶ Each of the e-mails contained a hyperlinked “Donate” button which sent potential donors to the donations screen at a website.³⁷ The donations screen at the website stated that “[n]o funds will be earmarked or reserved for any political purpose.” ³⁸ NOM received approximately $4,284 in donations as a result of these e-mail solicitations.³⁹

NOM contributed approximately $1.2 million to SMM in October 2009.⁴⁰ In addition to the e-mail solicitations, NOM raised funds by telephone and in-person.⁴¹ It also received recurring donations from major donors. ⁴² NOM mentioned the campaign in Maine in conversations with major donors.⁴³ NOM does not, however, solicit or accept designated contributions.⁴⁴

On August 13 and 24, 2009, Fred Karger of Californians Against Hate sent e-mail correspondence to the Commission requesting that the Commission investigate whether NOM had violated Maine's campaign finance laws by contributing to SMM.⁴⁵ On August 27, 2009, the Commission invited both SMM and NOM to respond and they did so.⁴⁶ The Commission considered the evidence and legal argument submitted by NOM and SMM, and, before the November 3, 2009 election, authorized its staff to conduct an...